The Transparent Transition That Was Not to Be

Nearly a year ago, a colleague (Taylor Lincoln, the research director of Public Citizen) and I made five recommendations for then-candidates Hillary Clinton and Donald Trump to run a transparent presidential transition.

We hoped to promote democratic principles and transparency over secrecy and insider dealing. We called on each candidate to adopt a transition ethics policy, to share who transition officials were meeting with on a public website, and to archive important transition documents. These were all steps that adhered to past practice and democratic norms.

In the most recent special issue of the Elections Law Journal (ELJ), my article makes a similar case: the presidential transition period illustrates many of the problems of a system of public policy-making prone to unequal access and the influence of money— a problem that runs much deeper than illegal corruption, yet one which cannot be addressed under the Supreme Court’s restrictive doctrine. Recall, even after the passage of a new law to provide more federal funds to candidates, the transition period is nearly unregulated by the federal government, and most ethics procedures are voluntarily adhered to prior to the Inauguration.

Looking back at our recommendations, the magnitude of how little we were listened to cannot be understated.

While the direction of ethics and transparency had been on the rise from Clinton to Bush to Obama, in 2016, we returned to a process that was largely shielded from public view and shrouded in secrecy. The argument I make in the ELJ, then, is only strengthened by this transition where lobbyists were given considerable access to the transition team, ethics appeared to be a passing concern, and transparency was nearly forgotten.

To be sure, not all of our recommendations were ignored. We suggested that both candidates announce who was overseeing pre-election transition planning after the primaries. Trump first named NJ Governor Chris Christie and Clinton later called on former Secretary of the Interior Ken Salazar.

Beyond that, the candidates, and most importantly the Trump transition team, paid little attention to our concerns for sharing information with the public about meetings with lobbyists, restricting financial contributions, and archiving documents.

For example, though Trump campaigned on “draining the swamp”, lobbyists initially flooded onto the planning team, according to news reports. Governor Christie held private briefings with financial contributors to the transition efforts, but we knew little about how many of these meetings were held or who attended.

Once the election ended, Christie was excused from his transition duties and replaced by Vice President-Elect Mike Pence. According to Politico, some of those lobbyists on the transition quickly departed once Vice President-elect instituted an ethics rule that required lobbyists to de-register.

What may have been a signal that the Trump transition team was taking seriously the appearance of impropriety was not to be.

For one, the nominal ban on lobbyists on the Trump transition did not extend to contributions to the team itself. Michael Beckel at Center for Public Integrity found that the Trump transition team raised $5.4 million for its operations, much from registered lobbyists, including lobbyists for the pipeline, private prison, and pharmaceutical industries. And, despite accepting millions in additional federal funds to support the transition, it appears that no records were kept on what transpired during the transition.

Moreover, in order to facilitate the transition to power, the Trump team assigned temporary staff to agencies – what they called “beachhead teams” – while new appointees were chosen and Senate-confirmed. Yet, even after adopting a 5-year ban on lobbying, the White House welcomed lobbyists onto the beachhead teams. ProPublica recently published a list of 400 of the names. In addition to an array former Breitbart Media staffers and recent high school graduates, 36 are long-time lobbyists (what ProPublica concedes is likely an undercount), many now working in agencies focused on same issues they had recently lobbied.

And finally, and most sublimely, Politico reported that the Trump White House cancelled plans to conduct widespread ethics trainings for 4,000 federal officials through the General Services Administration. The White House contended that the Counsel’s office run by former SEC commissioner Donald McGahn, who was at the center of recent efforts to “defang” the Federal Election Commission, could provide sufficient guidance at a much lower price.

All of these head-scratching practices adhere to federal law.

While many other claims about corruption have been lobbed at the new White House, the transition team at least appears to have adhered narrowly to the meager requirements of the law. As a consequence, we do not know who did and who did not have access to the Trump transition team, and whether access was connected to financial support to the campaign or transition planning operations, though numerous Trump appointees have been major campaign contributors in the past. We do not know what financial ties those on the transition team had to the issues on which they were working. And, we do not even have any transition documents shared with the public or archived for future review.

This is all concerning for several reasons that I address in my ELJ article. It portends a worrisome practice for the Trump White House and federal agencies overseen by new appointees. It raises serious questions about an important part of the policy process that may be prone to capture not just by quid pro quo corruption as defined by the Roberts Court, but also by unequal access to power and influence hidden by weak commitments to transparency and public participation.